dissenting:
Because I think the majority’s affirmance rests on both a mistaken view of the role of arbitration, one which the Supreme Court has recently abandoned, and on an incorrect inference it draws from Congressional purpose, I respectfully dissent.
The majority says that it recognizes the “liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). This policy, which provides that a party who agrees to arbitrate is bound to that agreement, absent fraud or duress. See Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987). This rule has *299been codified as the United States Arbitration Act, 9 U.S.C. § 1 ci seq. (1982), and creates a presumption permitting arbitration that the majority ignores. The exception to the ability to agree to arbitration is found when Congress creates a right that it wants vindicated in court, and thus prohibits a waiver of that forum. In those cases arbitration is barred. As the party seeking to avoid arbitration, Bird bears the burden of establishing Congress’ purpose to exclude ERISA from the Arbitration Act. This purpose must be discernible from the text of ERISA, or its legislative history, or its underlying policies. See MaMahon, 107 S.Ct. at 2337. In my view, Bird has failed to meet this burden.
The linchpin of the majority’s position is the distinction it draws between contractual rights relating to an ERISA plan — that can be brought in either federal or state court — and statutory rights created by ERISA which, the majority believes, may only be brought in federal court. Hence, it emphasizes the statutory nature of the rights that Bird asserts. The majority correctly notes that if a plaintiff goes to court to enforce a right created by ERISA, rather than by the pension plan, federal jurisdiction is exclusive rather than concurrent. See 29 U.S.C. § 1132(e). It then seems to take a leap in logic to a proposition with which I am unable to agree: Congress’ preference for federal courts to state courts in the above instance compels the conclusion that Congress also prefers federal courts over arbitration tribunals, so much so that private parties cannot contract to the contrary.
This finding of Congressional design is unsupported by the majority’s citations to ERISA’s text or its legislative history — neither source even mentions arbitration. Further, it defies the Supreme Court’s pronouncement that our “duty to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights.” McMahon, 107 S.Ct. at 2337 (emphasis added); see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 625-27, 105 S.Ct. 3346, 3353-54, 87 L.Ed.2d 444 (1985) (stating that presumption of arbitrability applies to statutory claims); Local 210, Laborers Intern. v. Labor Relations Div. Assoc’d Gen. Contractors of America, 844 F.2d 69, 74 (2d Cir.1988) (dictum).
Obviously, this is not to say that all statutory claims must be arbitrable — Congress may require exclusive federal court jurisdiction. See Barrentine v. Arkansas Best Freight Sys., 450 U.S. 728, 742, 745, 101 S.Ct. 1437, 1445, 1447, 67 L.Ed.2d 641 (1981) (holding that Congress envisioned a plaintiff who loses compulsory arbitration may still bring federal court claim arising under the Fair Labor Standards Act, 29 U.S.C. § 201, particularly because unions that represent plaintiffs in arbitration may not always do so vigorously). But it does not follow that from the presence of a federal statutory right, and the existence of a federal judicial forum with “ready access” to it, that plaintiffs are mandated to use that forum exclusively. See McMahon, 107 S.Ct. at 2338 (stating that the exclusive jurisdiction provision of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), is waivable by compulsory arbitration agreement). There is no suggestion in the statute or the circumstances leading to its enactment that when Congress gave ERISA plaintiffs “ready access” to the federal courts, it was issuing an invitation to plaintiffs that they could not refuse.
In an effort to portray “an inherent conflict between arbitration and the statute’s underlying purposes,” McMahon, 107 S.Ct. at 2337, the majority characterizes ERISA as a “remedial” statute, and then sets forth a number of reasons why Congress enacted ERISA. Concededly, the legislative goal of protecting pension fund participants and beneficiaries is laudable. But that does not answer the question of what means a party may select to vindicate those statutory rights. Cf. Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3359 (stating that a party who agrees to arbitrate does not forego substantive rights under a statute, but merely alters the means of resolving the dispute). Simply labeling ERISA as “remedial” is insufficient, it seems to me, to rebut the *300heavy presumption in favor of freedom of contract to arbitrate, particularly as the High Court has sustained the validity of compulsory arbitration agreements under other “remedial” statutes. See McMahon, 107 S.Ct. at 2345 (describing the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c) (1982), as remedial, but nonetheless enforcing compulsory arbitration agreement); Mitsubishi, 473 U.S. at 637, 105 S.Ct. at 3359 (holding that enforcement of compulsory arbitration provision would not prevent the Clayton Act, 15 U.S.C. § 15, from serving its remedial function).
In the final analysis, what remains of my colleagues’ underlying premise must be that Congress could not have envisioned arbitration of ERISA’s remedial statutory rights because arbitrators are not up to the task. Yet, that assumption appears untenable too. See McMahon, 107 S.Ct. at 2340; Mitsubishi, 473 U.S. at 633, 105 S.Ct. at 3357. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219-20, 105 S.Ct. 1238, 1241-42, 84 L.Ed.2d 158 (1985); Moses H. Cone Memorial Hosp., 460 U.S. at 24, 103 S.Ct. at 941.
Here, Bird signed a contract agreeing to submit his disputes to arbitration. Because there is no hint that Congress planned to deprive him of that option, he should be held to the bargain he made. See McMahon, 107 S.Ct. at 2346; Mitsubishi, 473 U.S. at 640, 105 S.Ct. at 3360. I would adopt the approach of the Eighth Circuit in Sulit v. Dean Witter Reynolds, Inc., 847 F.2d 475 (8th Cir.1988) (enforcing agreement for compulsory arbitration of ERISA claim), in light of our duty to “rigorously enforce agreements to arbitrate.” See Dean Witter Reynolds, Inc., 470 U.S. at 221, 105 S.Ct. at 1242.
Accordingly, I vote to reverse the order denying appellant’s motion to compel arbitration, and to remand to the district court for it to direct that the agreement to arbitrate be enforced.